Medical Marijuana's Image Problem

The law that would make it illegal for dispensaries to advertise.

There's a lot for medical-marijuana advocates to be excited about in the new pot legislation approved by the state Senate last Wednesday. The bill offers more protections for patient employees, and takes most of the state's dispensaries out of the gray area that had hitherto classified them as illegal. But amid these clarifications, one part of the law that deals with medical-marijuana advertising seems to make things more confusing. And one University of Washington law professor and First Amendment expert says it's "clearly unconstitutional." Stewart Jay, a Harvard grad and a UW faculty member for more than 30 years, specializes in constitutional law—particularly First Amendment issues—and has followed Washington's various medical-marijuana laws closely for years. Writing to Seattle Weekly, he says he takes issue with the language regarding advertising in the current bill, which still awaits approval by the House of Representatives. If the bill passes, it would no longer be legal to "advertise cannabis for sale to the general public in any manner that promotes or tends to promote the use or abuse of cannabis." That includes "displaying cannabis, including artistic depictions of cannabis," a wrinkle which would make much of what's printed in this paper's back pages illegal. Fortunately, Jay says the new law can't withstand a constitutional stress test. "If a court views medical marijuana as akin to tobacco or alcohol, this law is clearly an unconstitutional regulation of commercial speech under several Supreme Court decisions," he writes. Furthermore, Jay says that the legal bind the state finds itself in is one he's seen coming for years. In wanting to make a formerly restricted product legal, but still wanting major restrictions, he says the state legislature is trying, and failing, to adopt the role of a specialized body like the Department of Health. Instead of using a "blunderbuss provision like this one," Jay says that the state legislature should pass a more generalized bill, then delegate the task of regulating things like advertising to agencies better suited to doing so.

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